Exhibit 10.11
Amended and Restated Consulting and Placement Agreement
This AMENDED AND RESTATED CONSULTING AND PLACEMENT AGREEMENT (this
"Agreement") is entered into this 28 day of May, 2003 (the "Effective Date") by
and between Xxxxx Xxxxx ("Consultant"), and Advaxis, Inc., (the "Company").
WHEREAS, the Company seeks to enter various business development
activities, strategic collaborations and licensing deals (each, a
"Transaction");
WHEREAS, Consultant has access to a network of pharmaceutical and
biotechnology companies ("Strategic Partners"), one of more of which may be
interested in participating in the Transaction and is willing to make
introductions to such Strategic Partners on the basis described below.
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Consulting and Placement Services. Consultant will:
(a) Assist the Company in the preparation and refinement of its marketing
summary, financial projections, power point presentation and similar documents
and oral presentation (collectively "Offering Materials").
(b) Assist the Company in managing the Strategic Partner solicitation
process, including, without limitation: (i) approaching the Approved Partners
(as defined below); (ii) disseminating the Offering Materials; and (iii)
arranging Introductions between Company and Approved Partners (as defined
below). An "Introduction" shall be defined as at least one of (a) a face to face
meeting between Company and an Approved Partner (as defined below) or (b) two
scientific or business teleconferences or combination of scientific and business
teleconference to review Company technology and commercialization possibilities.
One executive or scientific level manager from Company and the Approved Partner
must attend each teleconference (qualified company personnel include: Xxxxxx
Xxxxxxxxx, Xxxx Xxxxxx, Xxx Xxxxxx, Xxxx Xxxxx). It is hereby agreed and
understood that only an Introduction (as defined above) on or before the
termination or expiration of this Agreement that will result in a Transaction
will result in any fees due to Consultant pursuant to sections 3 and 4 of this
Agreement. Following an Introduction (as defined above), Consultant will send
Company an e-mail notification of such meetings and Company will respond
acknowledging a successful Introduction. Potential partners will qualify as
"accredited investors" as that term is defined in Rule 501 of the Securities Act
of 1933.
2. Approvals.
(a) Pre-approval. Any and all Strategic Partners or individuals approached
by Consultant on behalf of the Company must be pre-approved. A list of 28
pre-approved Strategic
Partners ("Approved Partners") executed by both parties follows this agreement
in Appendix A. The list of Approved Partners may be amended or modified in
writing by both parties (each company listed in appendix A: "Approved Partner").
A signed letter from the Company CEO to the Consultant indicating that a company
or companies may be added to the Approved Partner list will be sufficient to add
an additional company or companies to the Approved Partner list in Appendix A.
(b) Final Approval. The final terms of the Transaction will be subject to
those terms and conditions negotiated by the Company and any Approved Partner.
The Company will be free to reject any proposed transaction with which it is not
satisfied for any reason or for no reason.
(c) Other Investors. The Company may sell Preferred Stock to or enter a
strategic partnership or any other transaction with any person or entity other
than an Approved Partner without payment of any Success Fees (as defined below)
to Consultant.
3. Compensation. Consultant will receive the following payments (the "Success
Fees") to be paid by the Company upon the completion of the Transaction with an
Approved Partner pursuant to an Introduction (as defined above) by Consultant:
(a) In agreements where the combination of upfront licensing fees,
proposed gross proceeds for collaborative research, and milestone payments are
greater than $5 million then the following:
(i) Cash Fee: A cash fee equal to: (i) five percent (5%) of the
gross proceeds received from a Strategic Partners as an
upfront licensing fee in any Transaction. (ii) Three percent
(3%) of the gross proceeds received from a Strategic Partners
for collaborative research; (iii) three percent (3%) of any
milestone payment, if and when received by Company (not
including royalties).
(b) In agreements where the combination of upfront licensing fees,
proposed gross proceeds for collaborative research, and milestone payments are
less than or equal $5 million then the following: 3% (three percent) of such
fees plus 3% of royalties actually received by the company up to a cumulative
max of $800,000.
(c) Options: That number of non qualified options equal to: (i) five
percent (5%) of the gross proceeds received from a Strategic Partners as an
upfront licensing fee in any Transaction, divided by $1.50. (ii) Three percent
(3%) of the gross proceeds received from a Strategic Partners for collaborative
research, divided by $1.50; (iii) 2% (two percent) of any milestone payment, if
and when received by Company (not including royalties), divided by $1.50.
The number of options and the exercise price assumes a 100:1 split in the
Company's shares, currently planned. For purpose of example only, in the event
Company receives an upfront license fee of $300,000, Consultant shall receive
10,000 options.
The options: (i) shall be immediately exercisable in whole or in part in
shares of common stock of the Company; (ii) have a ten (10) year term that does
not require an ongoing relationship between the Company and Consultant; (iii)
shall have an exercise price equal $150; (vi) shall be
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non-qualified for tax purpose; (v) shall be subject to the terms and conditions
Company's 2003 Stock Option Plan as it applies for consultants and outside
advisors.
4. Other Transactions. If the Company enters into a business transaction (other
than the Transaction) during the term of this Agreement with an Approved Partner
pursuant to an Introduction, the Company agrees to pay Consultant a cash fee of
4% of such proceeds. Such transactions may include, without limitation, a
purchase of assets, merger, acquisition, licensing agreement, joint venture,
sales contract, an investment of equity, subordinated debt, senior debt or lease
facility ("Other Transactions").
Future Transactions. In the event that any Approved Partner enters into a
Transaction with the Company pursuant to an Introduction by Consultant within 15
months from the termination of this agreement; or two years from the termination
of this agreement for any Approved Partner that enters a material transfer
agreement during the term of this agreement pursuant to an Introduction by
Consultant, then for such Transactions, Consultant shall be due (i) its full fee
as set forth in Section 3 or in section 4, as it may apply.
5. Termination. This Agreement will remain effective until December 31, 2003 and
from that point forward will automatically renew on a month to month basis,
although both parties may mutually extend this Agreement, and either party
reserves the right to terminate this Agreement at any time with a 30-day notice,
for any reason or for no reason. Any such termination or extension shall be in
writing. Upon the termination or the expiration of this Agreement, Company will
send to Consultant a list of Introduction made by Consultants for purpose of
section 4.
6. Non Exclusive. The Company may from time to time: (i) engage other persons
and entities to act as consultants to the Company and perform services for the
Company, including services that are similar to the ones described herein; and
(ii) enter into agreements similar to this Agreement with other persons or
entities, in all cases without the necessity of obtaining approval from
Consultant.
7. Representations and Warranties. Consultant represents and warrants as
follows:
(a) It shall comply with all applicable laws with respect to the sale of
securities in its performance of its obligations under this Agreement.
(b) Consultant shall not make any factual statements regarding the Company
other than those provided to Consultant by the Company or approved by the
Company.
8. Confidentiality.
(a) Each party agrees to maintain the confidentiality of the contents of
this Agreement. Consultant agrees to maintain the confidentiality of any
nonpublic or proprietary information concerning the Company, including without
limitation trade secrets, intellectual property, business plans, financial
projections, current and potential customer and client lists, business
acquisition plans, personnel acquisition plans, all other information pertaining
to the business of the Company; provided, however, that confidentiality shall
not be required with
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respect to the following: (i) any information that is, or becomes generally
available to the public other than as a result of a disclosure by Consultant;
(ii) any information in the possession of Consultant prior to disclosure of such
information to Consultant by the Company as evidenced by written records; or
(iii) any information that becomes available to Consultant from a source not
under a confidentiality obligation to the Company.
(b) The Company agrees to hold confidential the names of Approved Partner
introduced by Consultant to the Company whether or not such Approved Partner
invest in any Transaction.
(c) This Section 10 shall survive the termination or expiration of this
Agreement.
9. Governing Law. This Agreement shall be interpreted and enforced in accordance
with the laws of New Jersey, without giving effect to its conflict of laws
rules.
10. Dispute Resolution. Should a dispute arise between the parties under or
relating to this Agreement, each party agrees that prior to initiating any
formal proceeding against the other (except when injunctive relief is
appropriate), the parties will each designate a representative for purposes of
resolving the dispute. If the parties' representatives are unable to resolve the
dispute within ten business days, the dispute shall be settled by mediation and
then, if necessary, by arbitration under the then-current commercial arbitration
rules of the American Arbitration Association. The location of the proceeding
shall be Princeton, NJ. Judgment upon any award rendered by the arbitrator may
be entered by any State or Federal court having jurisdiction thereof.
11. Entire Agreement. This Agreement contains the parties' entire understanding
and may not be modified except in writing signed by both parties.
12. Assignment. This Agreement may not be assigned by any party without written
consent
13. Travel. Any --expense over $250 will need prior approval from the CEO of
Advaxis.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the Effective Date.
[CONSULTANT]
By: /s/ Xxxxx Xxxxx
-----------------------
Name:
ADVAXIS, INC.
By: /s/ J. Xxxx Xxxxxx
------------------------
Name:
Title:
Appendix A:
Approved Partners:
1. Acambis PLC
2. Agensys
3. American Home Products (Wyeth)
4. Amgen
5. Antigenics
6. Aventis (Aventis Pasteur)
7. AVI BioPharma
8. Xxxxxx
9. Xxxx & Xxxxxxx Xxxxx Foundation (Vaccine research foundation)
10. Biomera
11. Cell Genesys
12. Chiron
13. Corixia
14. Dendreon
15. DynPort Vaccine Company LLC
16. Elan
17. Epimmune
18. Genencor
19. Genentech
20. Genezyme
21. GSK
22. Human Genome Sciences
22. Imclone
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23. Maxygen
24. Medimmune
25. Merck
26. Shire (Biochem Pharma)
27. Transgene
28. VaxGen
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